The procedure to enact a new constitution
By Neville Ladduwahetty-January 12, 2016, 10:49 am
After navigating through a procedural journey, the final destination for the enactment of a New Constitution is per Paragraph 28 of the Resolution, intended to be, for "…the Prime Minister (to) move that the Bill be passed by Parliament by a special majority required under Article 83 of the Constitution."
and
per Paragraph 29, "Thereafter the Bill shall be submitted by the President in terms of Article 85 (1) of the Constitution to the People by Referendum for their approval". (The Island, December 23, 2015).
Since the Bill would eventually be submitted to the People for their approval or rejection at a Referendum, the Bill has to be in presented in a form that it is readily comprehensible to the People. Unlike a normal Bill to amend the Constitution or even to repeal and replace a constitution, the contemplated Bill is unique in that it would have 3 distinct components that normally would be presented as 3 separate Bills. The 3 separate and distinct components are:
(1) Abolition of the Executive Presidency.
(2) Electoral reform
(3) Constitutional resolution of the national issue (devolution).
A Bill or Bills relating to the above components would require the approval by a 2/3 majority of Parliament and approval by the People at a referendum. If the above 3 components are presented as a single Bill even Members of Parliament would be forced to make difficult choices if they are to vote according to their conscious. On the other hand, since voting is often influenced by loyalty to Government formations, it would be normal for the supporters of the Government in Parliament to vote "yes" to whatever is presented. However, this would not be the case for the People at the referendum. Since the People would not be under compulsions that Members of Parliament have to face on grounds of loyalty to Government formations, the Bill should be presented in a form that would enable the People to freely exercise their judgment and protect their interests because at the end of the day it is the People who would have to live under the provisions of the New Constitution.
TWO-THIRDS APPROVAL by PARLIAMENT
The Government is confident of securing a 2/3 approval of parliament whatever the form of the New Constitution. The reason for this is because of the nature of the present Government. The formation of the current Government is a direct outcome of the August 17, 2015 Parliamentary election. At this election no recognized political party secured an outright majority. Therefore, it became a matter of necessity to craft a Government made up of 106 Members of Parliament that had contested under the UNP ticket joining forces with the UPFA - the other recognized political party that secured the second highest majority, and form a grand coalition. Such an arrangement would have been legitimate. However, a significant section of the UPFA decided to opt out of this grand coalition. Consequently, what is currently in place is not a grand coalition but a political formation crafted by the UNP and a section of the UPFA coming together to form a Government. Such a formation existed under the former administration as well.
However, the current Government has several serious shortcomings in respect of legitimacy. For instance, this Government far exceeds the limitations set for the number of Cabinet Ministers (maximum of 30) and the number of non-Cabinet Ministers and Deputy Ministers (maximum of 40) as per Article 46 (1) of the 19th Amendment. On the other hand, the Government could justifiably exceed the above limits provided it could meet the threshold of a National Government which is "…a Government formed by the recognized political party or independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or independent groups" (Article 46 (4) & (5) of the 19th Amendment). Since the current Government has exceeded the limits of 30 Cabinet Ministers and 40 non-Cabinet Ministers and Deputy Ministers and also fails to meet the test of a National Government, it is in violation of the Constitution every day that it continues to function.
It would thus be such an unconstitutionally constituted Parliament that would be furnishing the 2/3 majority in support of the New Constitution regardless of whether it is formulated according to current Standing Orders or in violation of its provisions as currently being attempted by way of a Resolution. Furthermore, it would be such an unconstitutionally constituted Parliament that would provide the 2/3 majority whether the Bill is presented as a whole to repeal and replace the whole constitution or whether it is presented as 3 separate amendments. Whatever the eventual outcome the hard and undeniable fact is that the fundamental law of Sri Lanka would be based on a 2/3 approval of a Parliament that constitutionally has no legitimacy.
CONSEQUENCE of the CURRENT
GOVERNMENT FORMATION
The fallout of the current Government formation is to leave the section of the UPFA that decided NOT to join the UNP-led Government to be part of the opposition. Despite its numerical strength, this section of the UPFA is not given the recognition it should receive under normal practices of representative Democracy, where a Government in power and an opposition that often is recognized as a Government in waiting, constitute the Parliament. The reason for this state of affairs is attributed to a Memorandum of Understanding between the UNP and the SLFP which is ONLY a constituent party of the UPFA coalition; an understanding that has no legitimacy in a Parliamentary formation. Such understandings have made a mockery of the franchise of the People who voted for the UPFA. The non-recognition of their representatives in the Joint Opposition as legitimate members of the opposition denies their interests being articulated. This is a violation not only of their fundamental rights but also of their sovereignty. The proponents of good governance must be both deaf and dumb regarding this state of affairs in the Republic, judging from their stony silence.
APPROVAL by a REFERENDUM
The primary features of the New Constitution were to be the abolition of the Executive Presidential system, electoral reform and devolution. The abolition of the Executive Presidential system could have a bearing on the operation of devolved powers to Provincial Councils. Therefore, since ONLY 3 issues are of concern at this point in time what is the rationale to repeal and replace the whole constitution? Under the circumstances it makes sense for these 3 issues to be presented as amendments to the constitution and leave the rest of the current constitution intact. Furthermore, presenting these 3 issues as separate amendments would greatly help the voter make a measured decision to protect his/her interests when voting at the referendum.
Therefore, instead of going through the convoluted process proposed in the Government’s Resolution all that is needed is to initiate 3 amendments; the 1st -to abolish the Executive Presidency; the 2nd - on electoral reform; and the 3rd - on how devolution is to work under a reformed arrangement at the center. Adopting such an approach would be less complex and also less traumatic for the voter than if the whole constitution is to be repealed and replaced by a New Constitution.
CONCLUSION
The intention of the Government is to engage in an involved process to draft an entirely New Constitution and make it the fundamental law of Sri Lanka by getting the approval of 2/3 of the Members of Parliament as well as the approval of the People at a Referendum. The question in the minds of the public is: What is the compulsion for the Government to engage in such an ambitious undertaking when the expressed will of the People at the last Presidential Election was ONLY the abolition of the Executive Presidential System? And since a change in the structure at the center would affect how devolution would operate in devolved units, the need is to address this simply as a related issue to abolishing the Executive Presidential system. As for electoral reform since it has been in the works for a long time, there is an urgent need to bring this matter to a closure.
Therefore, the appeal to the Government is not to put the People through a wringer by engaging in an utterly unnecessary exercise of drafting a whole New Constitution. Instead, what would serve their interests would be to initiate 3 separate amendments relating to the 3 issues referred to above and simplify the whole process for the sake of the People because they already have too much to cope with. However, even if the process is simplified to resonate with the will of the People, an important fact that should not be overlooked is that each of the amendments would need approval by a 2/3 majority of a Parliament that constitutionally has no legitimacy as explained above.
It is absolutely vital that the processes associated with every stage of developing the fundamental law of the land has to be legitimate in all respects. Therefore, it is imperative that the composition of the current formation in the Executive branch of the Government in respect of the number of Cabinet Ministers, non-Cabinet Ministers and Deputy Ministers is reconstituted and brought within the framework of the Constitution for there to be legitimacy. Additionally, the Government needs to respect traditional features of representative democracy and recognize the legitimacy of the current Joint Opposition. Not to do so would be to impose constitutional reforms on the People by a Parliament that does not meet the test of a National Government without which it cannot justify the current numbers in the Executive. Revisiting the fundamental law of the land would have meaning ONLY if it is drafted and approved by constitutionally constituted organs of Government. Else, such laws are fakes.
